Updated 3.10pm, adds testimony of former Refugee Commissioner

The prime minister insisted on Tuesday that the government had to keep newly arrived migrants on boats off Malta in 2020 because migrant centres were full and the country was in the midst of a public health emergency.

Robert Abela was testifying in a human rights case instituted by 32 people who were held on board the Captain Morgan boats.   

The case happened in April 2020, at the height of the COVID-19 pandemic when the government declared Malta's ports closed and housed arrivals at sea in hired private tourist boats.

They were only allowed off the boats in June, after fears that one of them could be taken over by its restless detainees. By then, some 425 migrants were being held offshore. A number of them subsequently sued the Maltese government, saying their detention breached their rights. 

In his testimony, the prime minister started off by emphasising that the migrants had been rescued, and their lives saved, by the Armed Forces of Malta. 

The decision to transfer the people from AFM boats to non-military vessels was taken “collectively by the government”, he said.

One had to note the time when this decision was taken, he stressed.

“It’s different now, speaking in an air-conditioned room... Back then the country was facing an emergency. The superintendent of public health had declared an emergency. The airport and sea ports were shut down, except for cargo. There was a travel ban. The decision was taken in those circumstances. We never neglected our duty to save lives for one minute.” 

Lawyer Cedric Mifsud asked the prime minister what he meant by "collective decision". 

It was a decision taken by the government. There was a ban that affected everyone, the prime minister replied. 

"Was the decision taken on a political basis or because it was a public health issue", the lawyer asked.

Judge Toni Abela intervened asking the lawyer to state exactly what he meant by political decision.

Political, the lawyer said, in the sense that the government wanted to take a certain stand on migration. 

Abela said that Malta was one of the countries that rescued migrants and saved lives. People had been rescued despite difficult circumstances.  

"We had a choice: either lose those lives or save them within the restrictions we were facing at the time," he told the court.

"The country was closed. Most of the country was not paralysed but shut down. Our core function was to save lives and keep them as comfortable as possible, providing them with food, medicines, daily provisions and even cigarettes. Obviously, as comfortable as possible. Because at the time, the whole country was not comfortable and everyone bore a part of the burden. "

Migrants on one of the tourist boats hired by the Maltese government. Photo: Jonathan Borg

Arriving 'from all directions'

Abela further explained that migrant centres were full and boats were arriving "from all directions". There were some 650,000 migrants ready to cross over amid the public health emergency. 

He said that while trying to keep the migrants as comfortable as possible, the government was also working on their relocation. 

Asked about a statement issued by the government at the time about how Maltese authorities had “stood firm” in the migration crisis, the prime minister said the country was facing a disproportionate migration burden. Malta and Lampedusa were receiving more migrants than they could bear. 

Once Malta was part of the European Union, Malta could not have a situation where it was expected to keep all the migrants who arrived.  Having such a situation would make talk of solidarity useless. 

Questioned about the government's decision in the context of the European Convention on Human Rights, he insisted that it had to be read in the context of the public health emergency. 

Asked about the government’s long-term plan back then, Abela replied that there was no long-term plan “because it was never our plan to keep them on boats. It was a public health contingency. Then we found other methods".

Home Affairs Minister Byron Camilleri also testified. 

“That was a time when we, and the whole world, were taking hundreds of decisions every week, some of which we never dreamt we would take. The biggest challenge was that of irregular migration," he said.  

He said 2019 and the first months of 2020 were a record regarding the influx of migrants, when the airport and seaports were closed because of COVID-19.

Migrant centres, both open centres and closed detention camps, were overflowing and were not equipped to cater for those numbers. 

It was in that context that the government decided to keep those migrants on boats, while providing them with everything they needed, he said. 

“We made sure that they got everything until they could be brought ashore.”

The migrants’ rights were “given to them” but they had to wait for a while.

“All of society was suffering at the time,” the minister said. 

Asked whether he had personally been told about the alleged breach of rights the migrants claimed to have suffered at the time, the minister said that he personally had not spoken to anyone on board.  

He also pointed out that pregnant women and those who were unwell were immediately taken ashore.

Relocation efforts

Camilleri spoke on the government's efforts to relocate migrants who arrived in Malta. 

He said he had personally spoken to various European counterparts to secure pledges for the migrants to travel legally to other countries like France and Germany. 

The government reached agreements to relocate over 200 migrants.

It also opened a new migrants centre at Ħal Far. 

Asked how Captain Morgan was specifically chosen to provide some of the holding boats, the minister said that he did not know who was involved in that decision. 

It was a collective government decision for the migrants to wait on those boats, he said. 

Were you personally involved, pressed the lawyer. 

“All of us were,” he reply.

Refugee Commission not allowed to help

Former Refugee Commissioner Roberta Buhagiar said that she had not received any asylum applications from the migrants while on the boats. 

She had informed the authorities concerned, including ministers Camilleri and Evarist Bartolo, that if anyone on those vessels expressed an interest in applying for asylum, the Maltese authorities were duty-bound to accept their application. 

Although it was difficult to apply from aboard the boats, since the vessels were flying a Maltese flag and were operating under the orders of the Maltese government, they fell under Maltese jurisdiction.

Presiding Judge Toni Abela intervened, asking whether any such application could be done by mobile phone.

The answer was “no”.

The migrants would have had to be brought to port, escorted to the relevant centres where they would be registered and they would then lodge a formal application.

“Can the application be submitted by an attorney on someone else’s behalf,” asked the court. 

Again, the reply was negative. 

Buhagiar said her office was not allowed to assist the migrants on board the boats.

Once they were brought ashore on June 6, the Refugee Commissioner’s office began receiving applications. 

Asked whether there had been any communication between her and the government about the migrants, the witness said that there was no direct communication in the sense that she was not told about how the situation progressed. 

But some time between April 21 and April 30 that year, she had received a call from Clyde Caruana, then chief of staff at the Office of the Prime Minister, asking whether she was disposed to meeting the Prime Minister. This was before the decision to transfer the migrants to the boats was taken. 

She said she readily accepted. “But no one else spoke to me after that time,” Buhagiar added.

She said she encouraged the authorities to bring the migrants ashore when she sensed that the situation could escalate.

Asked by the applicants’ lawyer Cedric Mifsud whether she had received any answer from the government, the witness said that, hours after sending her communication, she had received a call from Aleander Balzan saying that the situation was “under control”. He also spoke about relocation. “I think he mentioned Germany, but I’m not sure,” said the witness. 

Asked by State Advocate Chris Soler, who is assisting the PM and Home Affairs Minister as respondents, whether an asylum seeker’s rights were in any way affected if he applied in June rather than April, she confirmed it would not have made a difference. 

The case continues in November.